People v. Holly

• Decision Date: 13 October 1976
• Docket Number: Cr. 27600
• Citation: 133 Cal.Rptr. 331,62 Cal.App.3d 797
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. James Alfred HOLLY, Defendant and Respondent.

Page 331

133 Cal.Rptr. 331

62 Cal.App.3d 797

The PEOPLE, Plaintiff and Appellant, v. James Alfred HOLLY, Defendant and Respondent.

Cr. 27600.

Court of Appeal, Second District, Division 1, California.

Oct. 13, 1976.

Hearing Denied Dec. 9, 1976.

John K. Van de Kamp, Dist. Atty., Donald J. Kaplan and Barry R. Levy, Deputy Dist. Attys., for plaintiff and appellant.

John M. Moore, Chief Deputy Public Defender, Harold E. Shabo, Holley Graham and Martin Stein, Deputy Public Defenders, for defendant and respondent.

LILLIE, Acting Presiding Justice.

By information defendant was charged in Count I with possession for sale of heroin (§ 11351, Health & Saf. Code) and in Count II with using and being under the influence of heroin (§ 11550, Health & Saf. Code). Evidence was taken at a joint hearing on a section 1538.5 motion and trial; the motion was denied. By stipulation the cause was submitted on this evidence. Motion for acquittal (§ 1118, Pen.Code) on the ground of insufficiency of evidence to support possession for sale was granted on Count I after amendment to the information (by stipulation) adding Count III charging possession of heroin (§ 11350, Health & Saf. Code); the motion was denied as to Counts II and III, and defendant was found guilty on each count.

On June 23, 1975, at the time set for pronouncement of judgment and sentence, after denial of motion for new trial, defendant moved to invoke the provisions of section 654, Penal Code. After a substantial and primarily factual argument, the trial court found '654 does apply to this situation.' Thus, the court disposed of Count III (possession of heroin) first; it suspended the proceedings and granted probation for a period of four years on certain conditions one of which was that defendant spend 120 days in the county jail, execution of said sentence to be stayed 'until and if defendant is presented on violation matters involving facts occurring subsequent to $3/21/75.' On Count II (using and being under the influence of heroin) the court pronounced judgment; it sentenced defendant to 90 days in the county jail then ordered the sentence suspended and stayed pending any appeal and during service of any sentence the Adult Authority should pronounce on Count III, said stay to become permanent at the completion of such sentence.

The People appeal 'from the order of June 23, 1975, as to the sentence imposed on said defendant'; and appellant's opening brief recites 'This is an appeal by the People, pursuant to Penal Code section 1238(a)(5), from the order of June 23, 1975 . . . as to the sentence imposed on the defendant.' Appellant concedes that if section 654, Penal Code applies, the trial court took the proper procedure to implement the prohibition against multiple punishment, but disputes the trial court's finding that Penal Code section 654 is applicable.

1] At the outset, respondent challenges the People's right to appeal on the theory that they have appealed from the 'sentence,' and argues that under section 1237, subdivision 1, Penal Code a sentence is deemed to be a final judgment and only a defendant may appeal therefrom, and nothing in section 1238, Penal Code authorizes an appeal from a judgment by the People. Although the People have recited in their notice of appeal that they appeal from the June 23, 1975, order 'as to the sentence,' and normally an appeal from a sentence is the same as one from the judgment (People v. Spencer, 71 Cal.2d 933, 934, fn. 1, 80 Cal.Rptr. 99, 458 P.2d 43), it is clear in the case at bench that this is an appeal from '(a)n order made after judgment, affecting the substantial rights of the people.' (§ 1238, subds. (a)(5), Pen.Code.) On Count II, the court first pronounced judgment and sentence, then made an order suspending the sentence and staying the same pending an appeal from and during service of any sentence on Count III, the stay to become permanent upon completion of such sentence. It is from this order implementing the prohibition against multiple punishment in accord with the finding that section 654, Penal Code applies, made After pronouncement of judgment and sentence, that this appeal is taken. The order is one 'affecting the substantial rights of the people' (§ 1238, subds. (a)(5), Pen.Code) in that it effectively relieves defendant, convicted of a violation of section 11550, Health and Safety Code, ¹ of the punishment prescribed therein. ² The order is analogous to an order suspending sentence and granting probation made after pronouncement of judgment and sentence from which the People have a right to appeal. (People v. Villegas, 14 Cal.App.3d 700, 703, fn. 2, 92 Cal.Rptr. 663, 665; ³ People v. Beasley, 5 Cal.App.3d 617, 630, 85 Cal.Rptr. 501, 509; ⁴ People v. Orrante, 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480; People v. Superior Court (Leslie), 118 Cal.App.2d 700, 703, 258 P.2d 1087.) ⁵

The sole issue raised by appellant is whether the trial court erred in finding that section 654, Penal Code ⁶ proscribing multiple punishment is applicable.

'By its terms, the section forbids multiple punishment for the commission of a single 'act' or 'omission.' The 'act' necessary to invoke section 654 need not be an act in the ordinary sense that it is a separate, identifiable, physical incident, but may be 'a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.' (Id., (1 Cal.3d) p. 376, 82 Cal.Rptr. p. 362, 461 P.2d p. 642.)' (In re Adams, 14 Cal.3d 629, 634, 122 Cal.Rptr. 73, 76, 536 P.2d 473, 476; People v. Bauer, 1 Cal.3d 368, 375--376, 82 Cal.Rptr. 357, 461 P.2d 637; Neal v. California, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)

2] The judge who found section 654, Penal Code to be applicable herein is the same judge who heard the evidence and acquitted defendant on Count I and found him guilty on Counts II and III. On defendant's motion to invoke section 654, the arguments of counsel were largely of a factual nature, and the court's ruling that the statute 'does apply to this situation' necessarily is predicated on a determination that the acts of which defendant was convicted constituted an indivisible course of conduct and that the several offenses were incident to only one objective, which is primarily a factual determination based on implied findings concerning defendant's intent and objective in committing the acts. (People v. Ferguson, 1 Cal.App.3d 68, 74--75, 81 Cal.Rptr. 418.) Thus we view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Sedeno, 10 Cal.3d 703, 712, 112 Cal.Rptr. 1, 518 P.2d 913.)

Around 1 p.m. the police arrested three persons for being under the influence of heroin, one of whom the officers observed exit apartment 5. Officer Todd then went to the open door of apartment 5, saw defendant inside and ordered him to exit; Officer Kelley observed that defendant's speech was slow and hesitant, his eyelids were drooping, he had dried saliva in each corner of his mouth and the pupils of his eyes were pinpointed. After giving defendant a pupil reaction test, Officer Kelley determined that defendant was under the influence of heroin, and arrested him; search of defendant revealed 16 balloons of heroin--15 in one pocket and 1 in another--each balloon contained less than half a gram of heroin although the normal balloon contains a half a gram; the gross weight of the 16 balloons was 2.12 grams, and the heroin had a street value of $160; no money was found on defendant's person. It was Officer Kelley's opinion '(i)n regards to fixes, some people use a half a balloon, some people use a full balloon.' Upon arrival at the jail, Officer Kelley examined defendant's arms and observed 22 puncture wounds over veins; three of the wounds were of recent origin and one was still oozing a clear liquid and blood where a scab had not yet formed; the last wound indicated a recent injection; in his opinion defendant was 'a moderate user of heroin.'

At trial, Officer Todd was asked by defense counsel to observe defendant's arms; he did so and noted an 'old track' (a series of puncture wounds along a vein area) on his arm and what appeared to be a collapsed vein; asked if the 'track' along the arm would 'indicate excessive usage' Officer Todd testified 'Yes, sir, it would to me'; asked over what period of time defendant had been using, Officer Todd answered 'I would say a track like that would probably be developed over maybe a year to a two-year period.'

3] In challenging the trial court's finding, appellant advances an argument based primarily on facts from which we are asked to draw inferences contrary to those drawn by the trial judge. ⁷ Appellant argues that the fact that defendant 'possessed on his person 16 balloons of heroin suggests that the defendant's possession of them may have been motivated by other than the single intent and objective to then use them to be under the influence.' This may be true but the trial court hearing the evidence found to the contrary. When the evidence reasonably justifies the findings of the trier of fact, reversal is not warranted merely because the circumstances may be reasonably reconciled otherwise. (People v. Beamon, 8 Cal.3d 625, 635, 105 Cal.Rptr. 681, 504 P.2d 905.)

'4] Since the divisibility of the transaction depends in part upon the intent of the defendant, a factual issue is presented. It is the function of the trial court, after seeing and hearing the witnesses, to determine this factual matter which controls the number of sentences to be imposed. A reviewing court is not...